Sammond v. Alliance for Sustainable Energy, LLC

          DISCOVERY ORDER

          S. Kato Crews U.S. Magistrate Judge

         This order addresses the simultaneous discovery briefs filed by the parties on November 11, 2019 [#49 (Plaintiff's Discovery Brief) and #50 (Defendant's Discovery Brief)].^[1] Those briefs address the issue of whether Defendant's Requests for Admissions (“RFAs”) served on Plaintiff are deemed admitted. The Court has reviewed the briefs, relevant case law, and docket filings.^[2] No. hearing is necessary to resolve this dispute. The Court construes this dispute as raising two issues: (1) whether Defendant's RFAs are deemed admitted; and, if so, (2) whether Plaintiff may withdraw or amend the admissions.

         A. BACKGROUND

         This case arises out of Plaintiff Deanne Sammond's (“Dr. Sammond”) employment as a post-doctoral researcher and Researcher III for Defendant Alliance for Sustainable Energy, LLC (“Alliance”). Alliance discharged Dr. Sammond on May 21, 2019. Dr. Sammond alleges her discharge was in retaliation for her prior complaints of sex discrimination. She brings five claims against Alliance under Title VIII and the Colorado Anti-Discrimination Act (“CADA”) for sex discrimination, retaliation, and wrongful discharge in violation of public policy. Alliance contends that Dr. Sammond was discharged because she sent an email disparaging her colleagues. This discovery dispute arises out of Dr. Sammond's untimely response to Alliance's three RFAs. [#48 at ¶2.]

         Alliance served its first set of discovery requests, including three RFAs, on Dr. Sammond's counsel by email on September 18, 2019. [#49-1 at p.11.] Dr. Sammond's responses were due October 18, 2019. [#50 at p.1.] Two days before the deadline, Dr. Sammond asked Alliance to agree to extend her deadline to respond to the RFAs. [#49 at p.2.] The reason defense counsel gave for the extension was that, “until shortly before [the deadline to respond], he mistakenly thought that he could complete them on time.” [Id.] Alliance did not agree to the extension. Dr. Sammond then filed her “First Motion for Extension of Time to Respond to Alliance's First Set of Discovery” on October 18, 2019, which was the day her responses were due. [Id.; see also #44.]

         The Court denied that motion on October 21, 2019, for failure to comply with Chief Judge Brimmer's practice standards. [#46.] Dr. Sammond then served her responses to Alliance's discovery requests on October 22, 2019, four days after her deadline. [#50 at p.2.] In those responses, rather than specifically admit or deny each RFA, she only raised “frivolous objections on grounds of relevance and attorney-client privilege, ” according to Alliance. [#50-2 at pp. 19-20.] For these reasons, Alliance asserts that all three RFAs are automatically deemed admitted per Fed.R.Civ.P. 36(a)(3).

         The disputed RFAs and responses are as follows:

REQUEST FOR ADMISSION NO. 1: Admit that your counsel drafted the May 9, 2019 [e]mail.

RESPONSE: Plaintiff objects to this interrogatory on the basis that it seeks to discover privileged attorney-client communications, and that it seeks to discover information protected by the attorney work-product doctrine. Plaintiff further objects on the basis that the identity of the drafter is no (sic) relevant to any claim or defense in this action. The dispute regarding the email is whether it is protected activity under the CADA and Title VII. That analysis is not changed identifying [sic] the drafter.

REQUEST FOR ADMISSION NO. 2: Admit that at least one co-worker at Alliance cautioned you not to send the May 9, 2019 [e]mail before you sent it.

RESPONSE: Plaintiff objects on the basis that this request seeks information not relevant to any claim or defense in this case. The dispute regarding the email is whether it is protected activity under the CADA and Title VII. Whether a co-worker cautioned Plaintiff or not is not relevant to that analysis.

REQUEST FOR ADMISSION NO. 3: Admit that you told at least one co-worker at Alliance that your attorney suggested that you send the May 9, 2019 [e]mail.

RESPONSE : Plaintiff objects to this interrogatory on the basis that it seeks to discovery (sic) privileged attorney-client communications. Additionally, had Plaintiff made such a statement, it would not constitute knowing and voluntary waiver of the privilege, hence ...